Tuesday, February 11, 2014

The Reid technique; Joseph Buckley, President of Reid and Associates, responds to a recent post by Ottawa criminal lawyer Solomon Friedman centered around a commentary published in the Ottawa Citizen headed "Reid it and weep - coercive interrogations the norm in Canada."

PUBLISHER'S NOTE: A recent post of this blog was devoted to a commentary by Ottawa lawyer Solomon Friedman on "The Reid Technique" which had been published in the Ottawa Citizen. I subsequently received a letter from Joseph P. Buckley, President of Reid and Associates in which he sets out his response to the commentary, as reprinted below in the interest of full discussion on the important issue of false confessions. I encourage other readers to send their comments on the debate opened up by Mr. Friedman's column to me at hlevy15@gmail.com.

Harold Levy: Publisher; The Charles Smith Blog;

"The
core elements of The Reid Technique have been upheld by a number of
Canadian Courts, including the Supreme Court. Here is a brief
discussion of several relevant cases:

Canadian Courts

In the case of R. v. Amos (2009)
the Ontario Superior Court upheld the techniques that the interrogator
successfully used to obtain a confession, many of which are elements of
the Reid Technique. For example, when discussing the interrogator's
efforts to minimize the suspect's moral responsibility, the court stated
the following:

There
is nothing problematic or objectionable about police, when questioning
suspects, in downplaying or minimizing the moral culpability of their
alleged criminal activity. I find there was nothing improper in these
and other similar transcript examples where [the detective] minimized
[the accused's] moral responsibility. At no time did he suggest that a
confession by the subject would result in reduced or minimal legal
consequences. Those questions did not minimize the offence anywhere
close to the extent of oppression within the meaning of Oickle and other
authorities. In using the words "this is your opportunity" to tell your
story, and statements to the effect that "your credibility is at
its highest now", and in asserting to the accused that he would not be
as credible ten months down the road at trial when he had "spoken to
lawyers", and the like, the detective was making an approach to the
accused's intellect and conscience.

In R. v. Oickle,
(2000) the Canadian Supreme Court overturned a lower
court's suppression of an arson confession and expressed implicit
approval of many of the interrogation techniques utilized in The Reid
Technique. In Oickle, the Court of Appeals suggested that the
interrogator's understanding demeanor improperly abused the
suspect's trust. The Canadian Supreme Court disagreed stating,

"In
essence, the court [of appeals] criticizes the police for questioning
the respondent in such a gentle, reassuring manner that they gained his
trust. This does not render a confession inadmissible. To hold otherwise
would send the perverse message to police that they should engage
in adversarial, aggressive questioning to ensure they never gain the
suspect's trust, lest an ensuing confession be excluded.”

Furthermore, in Oickle,
the Court of Appeals concluded that the police improperly offered
leniency to the suspect by minimizing the seriousness of his offense.
The Supreme Court again disagreed stating,

"Insofar as the police simply downplayed the moral culpability of the offence, their actions were not problematic."

In Oickle the
Supreme Court offers support for the investigator's necessity to be
less than truthful in persuasive efforts during an interrogation. It
referenced to the often cited decision of Justice Lamer who wrote, "The
investigation of crime and the detection of criminals is not a game to
be governed by the Marques’s of Queensbury rules. The authorities, in
dealing with shrewd and often sophisticated criminals, must sometimes
of necessity resort to tricks or other forms of deceit and should not
through the rule be hampered in their work. What should be repressed
vigorously is conduct on their part that shocks the community." (Rothman v. The Queen, 1981)

In
the Reid Technique we teach that when a suspect appears to be debating
whether or not to tell the truth, the use of an alternative question can
be a very effective means to obtain the first acknowledgement of the
truth. Examples of an alternative question include, "Have you done this
many times before or was this just the first time?", "Did you blow
that money on drugs and partying, or did you use it to pay bills?", "Was
this whole thing your idea or did you get talked into it?" It is
important to recognize that none of these alternative questions address
real consequences the suspect may face. This concept is emphasized
repeatedly during training in The Reid Technique, including
several examples of improper alternative questions. An example of an
improper alternative question is, "If you planned this out and it was
premeditated then we're talking first degree murder. That means spending
the rest of your life behind bars. On the other hand, if this happened
on the spur of the moment then it's just manslaughter." Clearly
this alternative question is telling the suspect that if he confesses to
manslaughter he will be sentenced less harshly. It is improper and
could be used as grounds to suppress a confession.

In Oickle,
the Court of Appeals expressed concern that the use of an
alternative question implied a threat or promise of leniency. In
refuting this argument, the Canadian Supreme Court offers a clear test
of whether or not an implied threat or promise crosses the legal line to
where an ambiguous statement may invalidate a confession. In their
opinion they state,

"The
most important consideration in all cases is to look for a quid pro quo
offer by interrogators, regardless of whether it comes in the form of a
threat or a promise."

"Very
few confessions are inspired solely by remorse. Often the motives of
an accused are mixed and include a hope that an early admission may lead
to an earlier release or a lighter sentence. If it were the law that
the mere presence of such a motive, even if promoted by something said
or done by a person in authority, led inexorably to the exclusion of a
confession, nearly every confession would be rendered inadmissible. This
is not the law. In some cases the hope may be self-generated. If so, it
is irrelevant, even if it provides the dominant motive for making the
confession. There can be few prisoners who are being firmly but fairly
questioned in a police station to whom it does not occur that they might
be able to bring both their interrogation and their detention to an
earlier end by confession."

Core Principals of The Reid Technique

There
are a number of basic principles that we teach that the investigator
should follow when they reach the stage of conducting an interrogation:

· Do not make any promises of leniency

· Do not threaten the subject with any physical harm or inevitable consequences

· Do not conduct interrogations for an excessively lengthy period of time

· Do not deny the subject any of their rights

· Do not deny the subject the opportunity to satisfy their physical needs

· Be
sure to withhold information about the details of the crime from the
subject so that if the subject confesses he can reveal information that
only the guilty would know

· Exercise special cautions when questioning juveniles or individuals with mental or psychological impairments

· The
confession is not the end of the investigation - investigate the
confession details in an effort to establish the authenticity of the
subject's statement

· Always act in compliance with the guidelines established by the courts

It
is often stated that the Reid Technique "shows no interest in learning
the truth, but the goal is to seek a confession." We clearly state the
exact opposite in our book Criminal Interrogation and Confessions (5th edition 2013) on page 5:

"The
purpose of an interrogation is to learn the truth. A common
misperception exists in believing that the purpose of an interrogation
is to elicit a confession.... If the suspect can be eliminated [from
suspicion] based on his or her behavior or explanations offered during
the interrogation, the interrogation must be considered successful
because the truth was learned."

It
has been suggested in Canada that it is more effective to conduct a
non-accusatory interview in which the investigator tries to build
rapport with the subject and develop the truth about the relevant
investigative information without any accusations or psychological
trickery (referred to as the PEACE Model) - this is exactly what we do
in the Reid Technique by beginning with a non-accusatory, fact finding
interview process as outlined in our text. In our book several chapters
devoted to the topic of conducting the non-accusatory interview.

********************************************************

Mr. Buckley goes on to refer to a passage in the article stating:

In
2012, a judge of the Alberta provincial court held that, stripped to
its bare essentials, the Reid Technique is a guilt-presumptive,
aggressive, psychologically manipulative procedure whose sole purpose is
to extract a confession.Accordingly, the court ruled that
the confession obtained from the Reid-style interrogation was
involuntary and therefore inadmissible.

He refers to the following discussion of this case on the Reid and Associates website, posted on the organizations What's New
column on September 20, 2012):

09/20/2012

Canadian Judge finds interrogation process to be 'oppressive' - mislabels as The Reid Technique

Earlier
this month a lower court judge in Alberta, Canada in the case R. v.
Chapple, found that a confession obtained after an 8 hour interrogation
was inadmissible because the interrogation process was so oppressive
that the suspect's will was overborne, leading her to say "what the
police wanted to hear". The investigating officers testified that during
their interrogation they conducted the interview "using aspects of the
Reid Technique." Unfortunately, the judge made the mistake of assuming
that everything the investigators did was part of The Reid Technique.

For
example, the interrogation in this case was reported to be 8 hours
long, during which the suspect "asserted at least 24 times that she
wanted to remain silent." In our book, Criminal Interrogation and
Confessions (5th ed 2011), we point out that if there is no progress
within a 3 to 4 hour period and the suspect remains adamant in their
denials, the interrogator must re-assess the situation. Furthermore, we
teach that the suspect's rights must be scrupulously honored.

The
Reid Technique was described as a "guilt-presumptive" procedure - to
the complete contrary, we teach investigators to take a neutral,
non-accusatory stance at the start of an interview with the aim of
developing investigative and behavioral information. If the
investigative information indicates the suspect's probable involvement
in the commission of the crime then an interrogation becomes
appropriate. We teach that the first contact with a subject should never
be an accusatory interrogation.

It should be noted for reference
that numerous Canadian courts have supported the basic approaches that
we spouse in the Reid Technique when we reach the interrogation phase -
such as displaying empathy and understanding toward the suspect during
the interrogation. For example, in R. v. Oickle, the lower court
suggested that the interrogator's understanding demeanor improperly
abused the suspect's trust. The Canada Supreme Court disagreed stating, "
In essence, the court [of appeals] criticizes the police for
questioning the respondent in such a gentle, reassuring manner that they
gained his trust. This does not render a confession inadmissible. To
hold otherwise would send the perverse message to police that they
should engage in adversarial, aggressive questioning to ensure they
never gain the suspect's trust, lest an ensuing confession be excluded."

In
the Reid Technique we teach that the investigator should minimize the
moral seriousness of the suspect's behavior. In Oickle, the Court of
Appeals concluded that the police improperly offered leniency to the
suspect by minimizing the seriousness of his offense. The Supreme Court
again disagreed stating, "Insofar as the police simply downplayed the
moral culpability of the offence, their actions were not problematic."

In
a more recent case, R. v. Amos, the court stated, "There is nothing
problematic or objectionable about police, when questioning suspects, in
downplaying or minimizing the moral culpability of their alleged
criminal activity. I find there was nothing improper in these and other
similar transcript examples where [the detective] minimized [the
accused's] moral responsibility. At no time did he suggest that a
confession by the subject would result in reduced or minimal legal
consequences."

False or coerced confessions are not caused by the
application of the Reid Technique, they are usually caused by
interrogators engaging in improper behavior that is outside of the
parameters of the Reid Technique - using improper interrogation
procedures - engaging in behavior that the courts have ruled to be
objectionable, such as threatening inevitable consequences; making a
promise of leniency in return for the confession; denying a subject
their rights; conducting an excessively long interrogation; etc.

As
one U.S. District court stated, "In sum, the proffered expert testimony
to the effect that the Reid technique enhanced the risk of an
unreliable confession lacked any objective basis for support whatever."
US v. Jacques, (2011).

PUBLISHER'S NOTE:Dear Reader. Keep your eye on the Charles Smith Blog. We are following this case.I
have added a search box for content in this blog which now encompasses
several thousand posts. The search box is located near the bottom of
the screen just above the list of links. I am confident that this
powerful search tool provided by "Blogger" will help our readers and
myself get more out of the site.The
Toronto Star, my previous employer for more than twenty incredible
years, has put considerable effort into exposing the harm caused by Dr.
Charles Smith and his protectors - and into pushing for reform of
Ontario's forensic pediatric pathology system. The Star has a "topic"
section which focuses on recent stories related to Dr. Charles Smith. It
can be found at:http://www.thestar.com/topic/charlessmithInformation on "The Charles Smith Blog Award"- and its nomination process - can be found at:http://smithforensic.blogspot.ca/2013/12/the-charles-smith-award-presented-to_28.htmlI look forward to hearing from readers at:

About Me

My interest in forensic pathology began with my Toronto Star investigative reporting into once famed since disgraced former doctor Charles Smith. I began this Blog after retiring from the Star in 2006 in order to follow the aftermath into the independent Goudge inquiry into many of Smith's cases. I have now begun to focus on cases involving flawed forensic science no matter where they occur (the recent Amanda Knox prosecution in Italy, for example) and am fascinated by the interest in the Blog from people in countries throughout the world. In another development, my interest in "junk science" "pseudo-experts" and the miscarriages of justice they all too often cause has drawn me deeply into the on-going U.S. death penalty debate where so many troubling cases involve issues relating to DNA and other developments in the world of forensic science. For all of this I rely on my experience as a reporter at the Toronto Star, my work as a lawyer in Ontario's criminal courts, and my abhorrence of injustice. Please send cases and developments which may be of interest to this Blog to hlevy15@gmail.com. Read on! Harold Levy.